Court File and Parties

COURT FILE NO.: CV-09-393625 DATE: 20170516 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ki Ho Kim, Plaintiff AND: 260 Wellesley Residences Inc. et al., Defendants

BEFORE: Mr. Justice Stephen Firestone

COUNSEL: Heather Hogan, for the Public Guardian and Trustee, Litigation Guardian for Ki Ho Kim

HEARD: In Writing

Endorsement

[1] The Public Guardian and Trustee (PGT), as litigation guardian for the plaintiff, Ki Ho Kim (“Kim”), brings this motion in writing for court approval of the proposed settlement of this action in the amount of $25,000.

[2] Kim opposes the proposed settlement and takes the position that he is not, or is no longer, a party under disability and therefore does not require a litigation guardian in order to continue with this action.

[3] Rule 7.01 (1) of the Rules of Civil Procedure, R.R.O.1990, Reg.194 (“the Rules”) states that “unless the court orders, or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian”.

[4] Disability is defined under Rule 1.03(b). It provides that “disability” where used in respect of a person, means that the person is, (a) a minor, (b) mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, in respect of an issue in the proceeding, whether the person has a guardian or not, or (c) an absentee within the meaning of the Absentees Act, R.S.O. 1990, c. A.3.

[5] In Kavuru (Litigation guardian of) v. Heselden, 2014 ONSC 6718, 2014 CarswellOnt 1618, (Div. Ct.) at para. 9, the Court confirmed the principle that once a finding of disability is made, and a litigation guardian has been appointed, it becomes the duty of the litigation guardian to handle the litigation:

[It] is important to remember what the role of a litigation guardian is. It is a person who is appointed to deal with a piece of litigation that the party cannot deal with on his or her own because that person suffers from a disability.

[6] At para. 12 the court goes on to state:

It was entirely within the authority of the PGT, in its role as litigation guardian, to agree to a settlement of these actions. It then fell to the court to determine whether those settlements ought to be approved. I accept that it is within the discretion of the judge hearing the approval motion to take into account any submissions that the person under a disability might wish to make regarding the proposed settlement, but it must be remembered that the person under disability no longer controls the litigation. That responsibility is vested in the litigation guardian.

[7] On December 17, 2012, Dr. Hai R. Kim, M.D.; F.R.C.P. (C) Consultant Psychiatrist & Psychotherapist rendered his opinion regarding Kim’s capacity. Dr. Kim found that Kim was a party under disability as that term is defined under the Substitute Decisions Act and that he required a litigation guardian to continue the proceedings.

[8] Based in part on Dr. Kim’s psychiatric assessment, on November 4, 2013, Master Graham found that the plaintiff was mentally incapable within the meaning of s. 6 of the Substitute Decisions Act, in respect of the issues in this proceeding and ordered that the PGT be appointed litigation guardian for him in this action.

[9] The plaintiff’s appeal of Master Graham’s decision dated November 4, 2013 was dismissed by Justice G.A. Hainey on July 8, 2014. The plaintiff’s subsequent motion for leave to appeal Justice Hainey’s decision was dismissed by the Divisional Court on December 5, 2014.

[10] Notwithstanding the above procedural history the plaintiff delivered motion materials seeking an order setting aside the order of Master Graham dated November 4, 2013 on the basis that Mr. Kim he is not a party under disability.

[11] On November 9, 2015, I directed that I be provided with a copy of the capacity assessment report of Dr. Venera Bruto, Ph.D.; C. Psych. which had been commissioned by Kim. That report concluded that Kim is mentally incapable and requires a litigation guardian.

[12] Dr. Bruto, in his report under concluding comments states in part:

It is my opinion, that in the absence of a litigation guardian, Mr. Kim would likely continue to use the legal system and societal processes to battle those who disagree with his opinions and appeared to him to disagree with his interpretation of events and circumstances in these cases. At no time during our discussion, does he ever consider the possibility that he might be in error to any degree or on any issue under consideration…

It is also my opinion that he is at risk of continuing to accrue multiple claims, complaints and the associated costs. At no time does he consider or appreciate the financial implications for him of potentially losing so many legal claims…

It is noteworthy that English is Kim’s second language. Although not likely invalidating the present findings [given the nature of Mr. Kim’s responses and efforts taken to ensure comprehension], it cannot be definitely ruled out that possible difficulties in Mr. Kim’s English fluency or comprehension may have impacted Mr. Kim’s ability to discuss more complex nuanced issues [e.g. errors in law]…

[I]n no circumstance, were statements of uncertain meaning relied upon, in the present assessment, to arrive at the finding of incapacity…

[I]f questions remain regarding Mr. Kim’s current decisional capacity, and it is considered appropriate, a 3rd capacity assessment conducted by a Korean speaking assessor might be considered.

[13] Given that Kim continued to contest the issue of capacity, in the interests of justice I ordered by way of endorsement dated April 15, 2016 that pursuant to s. 105 of the Courts of Justice Act, R.S.O.1990, c. C.43, Kim undergo a further capacity assessment to be conducted by a Korean speaking certified capacity assessor or in the alternative that a further capacity assessment take place with the assistance of a Korean speaking interpreter.

[14] In my endorsement dated November 10, 2016 I ordered that no further steps would be taken by the court regarding any motions filed in this matter until this further capacity report was received.

[15] Dr. Graham Turrall, a designated capacity assessor was retained on October 11, 2016 to conduct the capacity assessment. On March 24, 2017, Dr. Turrall delivered his report to the PGT. Based on four assessment interviews and clinical examinations, Dr. Turrall concluded that Mr. Kim was incapable. In his report he states in part as follows:

[T]hese deficits prevent him from understanding and appreciating the relevant information in his decision-making and appreciating the probable consequences of his decisions, or lack of decisions he chooses to make with respect to the legal actions that he has initiated.

[16] Kim has been found to be a party under disability as defined in Rule 1.03 regarding this proceeding. As a result Kim pursuant to Rule 7.01 he has no standing independent of his litigation Guardian the PGT to continue the proceeding which includes the bringing of any motions independent of his Litigation Guardian.

[17] In addition, the plaintiff’s prior motion for leave to appeal Justice Hainey’s decision of July 8, 2014 was dismissed by the Divisional Court. In accordance with Rule 7.01 and based on the principle of res judicata Kim’s current motion to set aside the order of Master Graham dated November 4, 2013 is not properly constituted and is dismissed.

[18] The requirement for court approval is set forth in Rule 7.08(1). This rule provides that “no settlement of a claim made by or against a person under disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge.”

[19] I have reviewed the complete evidentiary record. The record provides me with the evidence required to make a meaningful assessment of the proposed settlement.

[20] This action arises with respect to injuries sustained by Kim in a slip and fall incident which occurred on January 31, 2009. On that date, Kim slipped on ice while proceeding on the northeast sidewalk of St. James Avenue, Toronto, Ontario. Kim landed on his sacrum and both hands. His wrists were painful and swollen and he complained of back pain.

[21] After the fall Kim attended at St. Michael’s Hospital emergency room. As a result of the fall Kim had a longitudinal intra-articular fracture of his right wrist and a mildly impacted transverse fracture of his left wrist. Closed reduction was required. The casts were removed March 12, 2009. X-rays taken at that time revealed that both wrist fractures had gone on to heal. The X-ray reported that there had been “complete healing of the distal radius”.

[22] Kim does not have any source of income other than ODSP benefits. He was on welfare from 1994 to 1997 at which time he applied and was in receipt of ODSP.

[23] Based on the complete factual matrix and evidentiary record as it applies to both liability and damages including contributory negligence, I am satisfied that the proposed settlement is fair and reasonable, that it represents fair compensation and is in Kim’s best interests.

[24] I approve the proposed settlement for the all-inclusive amount of $25,000 to be distributed as follows: (a) $11,300 to Malach Fidler Sugar + Luxenberg LLP; (b) $3,000 to the Ministry of Health and Long-Term Care; (c) $8,476.70 to the Public Guardian and Trustee; and (d) $2,223.30 to the Accountant of the Superior Court of Justice to the credit of Ki Ho Kim until such further order of the court.

[25] Any cost orders made against Kim as a result of the previous interlocutory steps and appeals in this action are set aside. Given the ongoing litigation interrelated proceeding, I order under s. 137(2) of the Courts of Justice Act, that all motion material delivered by the PGT and Kim in relation to court approval of the proposed settlement of this action be, subject to further order of the court, sealed and not form part of the public record in order to protect solicitor-client privilege and confidentiality.

[26] Judgment is to issue in accordance with the original signed by me. The PGT is to forthwith forward a copy of this endorsement to Kim. I do not remain seized of any further motions regarding payment out of court.

Firestone J. Date: May 16, 2017